INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS ETC., ET AL., PETITIONERS V. NATIONAL LABOR
RELATIONS BOARD
No. 88-2006
In the Supreme Court of the United States
October Term, 1989
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
Brief for the National Labor Relations Board in Opposition
TABLE OF CONTENTS
Opinions below
Jurisdiction
Question Presented
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-12a) is reported
at 865 F.2d 791. The court's order denying a petition for rehearing
en banc (Pet. App. 44a-45a) is unreported. The decision and order of
the National Labor Relations Board (Pet. App. 13a-15a), including the
decision of the administrative law judge, is reported at 283 N.L.R.B.
182. The Board's order denying petitioners' motion for
reconsideration (Pet. App. 35a-36a) is unreported. The Board's
supplemental decision and order (Pet. App. 37a-39a) is reported at 285
N.L.R.B. No. 149.
JURISDICTION
The judgment of the court of appeals was entered on March 10, 1989
(Pet. App. 46a-51a). The petition for a writ of certiorari was filed
on June 8, 1989. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
QUESTION PRESENTED
Whether the National Labor Relations Board reasonably determined
that petitioners violated Section 8(b)(1)(A) of the National Labor
Relations Act (29 U.S.C. 158(b)(1)(A)) by imposing restrictions on
resignation from union membership.
STATEMENT
1. Petitioners, International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW) and its Local 449,
maintain and enforce a rule, contained in the constitution of the
International, that places restrictions on its members' right to
resign from the union. The rule permits a union member to resign only
if (1) the resignation is submitted during a ten-day period at the end
of the local union's fiscal year; (2) the member is not in arrears in
the payment of any financial obligations to the union; and (3) there
are no internal union charges pending against him. The resignation
must be in writing, and sent by registered or certified mail to a
designated official of the local union. A resignation that satisfies
these conditions becomes effective 60 days after the end of the local
union's fiscal year or on the expiration of any applicable dues
checkoff authorization, whichever is later. Pet. App. 3a-4a.
Petitioners were parties to a collective bargaining agreement
covering employees at the Rockford, Illinois plants of the Keystone
Consolidated Industries, Inc. Following expiration of the agreement
in April 1983, /1/ the parties reached an impasse in negotiations on a
new contract, and the union called a strike. During the strike, 41
employees at the Rockford plants submitted resignations from union
membership to the office of Local 449 and returned to work. Pet. App.
3a.
In October, several members of Local 449 including its president,
brought internal union charges against all but one of the 41
employees, alleging that they had engaged in "conduct unbecoming a
union member" by resigning without complying with the constitutional
restrictions and by returning to work during the strike. The
executive board of the local union found the charges "not to be
improper" under the constitution, clearing the way to bring the
charged employees to trial under petitioners' procedures. Pet. App.
3a, 22a-23a. /2/
Each of the charged individuals was notified of the executive
board's finding, and was informed that the charges would be
"administered" as provided by the International constitution.
Petitioners, however, took no additional steps to process the charges
or impose sanctions. Pet. App. 3a, 22a-24a.
2. The Board found that petitioners violated Section 8(b)(1)(A) of
the National Labor Relations Act, 29 U.S.C. 158(b)(1)(A), /3/ by
maintaining the restrictions on resignation contained in the
International constitution and by refusing to accept the resignations
submitted during the 1983 strike. Pet. App. 14a, 28a. The Board
reiterated its holding in Machinists Local 1414 (Neufeld
Porsche-Audi), 270 N.L.R.B. 1330 (1984) (Neufeld), "that any
restriction on resignation from union membership is invalid,
irrespective of the period of restriction, and that the mere
maintenance of a constitutional provision restricting resignation
restrains and coerces employees from exercising their Sec. 7 rights."
Pet. App. 14a n.1. The Board specifically rejected petitioners'
contention that, because no fines were imposed to enforce the
restrictions on resignation, there could be no violation of the Act.
It adopted the administrative law judge's statement (Pet. App. 24a)
that "(w)hether or not * * * fines (are) levied is only significant in
that they may be coercive restrictions on the exercise of (an
employee's) right (to resign from the union)." See Pet. App. 14a. The
Board directed petitioners to remove the restrictions on resignation
from the constitution and all other governing documents of the
International and Local 449, and to accept the submitted resignations.
Pet. App. 14a n.2, 29a-30a. /4/
2. The court of appeals found that the Board's interpretation of
Section 8(b)(1)(A) was reasonable and, with a single exception, /5/
enforced the Board's order (Pet. App. 1a-12a). The court observed
that the Board had followed its decision in Neufeld, in which it held
that any restriction a union imposes on resignation is invalid under
Section 8(b)(1)(A). The court also noted that Neufeld had been cited
with apparent approval by this Court in Pattern Makers' League of
North America v. NLRB, 473 U.S. 95, 103, 105 (1985) (Pattern Makers'),
in upholding the Board's decision that a union violated Section
8(b)(1)(A) by imposing fines on union members who resigned and
returned to work during a strike. Pet. App. 6a-7a.
The court of appeals rejected petitioners' contention that this
Court's finding of a violation of Section 8(b)(1)(A) in Pattern
Makers' was based not on the Union's maintenance of a "constitutional
restriction on the right to resign," but on the fact that the union
"levied heavy fines against the members who attempted to resign." Pet.
App. 8a. The court noted (Pet. App. 11a-12a) that the Seventh Circuit
had applied Pattern Makers' in analyzing restrictions similar to those
contained in petitioners' constitution, and had concluded that,
despite the fact that no fine was imposed, the union in that case had
violated the Act by impeding the employees' right to resign. See NLRB
v. Local 73, Sheet Metal Workers' Int'l Ass'n, 840 F.2d 501 (7th Cir.
1988). The court agreed with the Board's view that the resignation
restrictions in petitioners' constitution impaired "'the statutory
policy of voluntary unionism'" (Pet. App. 11a, quoting Sheet Metal
Workers' Int'l Ass'n, 840 F.2d at 508) and upheld the Board's
determination that the union violated Section 8(b)(1)(A) by
maintaining and enforcing those restrictions.
ARGUMENT
The court of appeals in this case appropriately deferred to the
decision of the Board, which was reasonable and consistent with the
decisions of this Court and other courts of appeals. The Board
applied its holding in Neufeld, 270 N.L.R.B. 1330 (1984), to conclude
that the Union's restrictions on resignation violated Section
8(b)(1)(A) of the Act. And the court of appeals held that the Board's
interpretation of Section 8(b)(1)(A) was reasonable and consistent
with this Court's decision in Pattern Makers'. The two other courts
of appeals that have struck down similar restrictions on resignation
have endorsed the Board's decision in Neufeld and agreed with the
Board's view of Pattern Makers' as expressed in that decision. See
NLRB v. Local 73, Sheet Metal Workers' Int'l Ass'n, 840 F.2d at
504-505; NLRB v. Sheet Metal Workers Int'l Ass'n, Local 16, 873 F.2d
236, 237 (9th Cir. 1989). Further review is therefore unwarranted.
1. In Neufeld, the Board held that "any restrictions placed by a
union on its members' right to resign" violate Section 8(b)(1)(A) of
the Act and are unlawful. 270 N.L.R.B. at 1333 (emphasis added). The
Board analyzed resignation restrictions under a three-part test
propounded by this Court in Scofield v. NLRB, 394 U.S. 423 (1969): a
union rule is valid if it "reflects a legitimate union interest,
impairs no policy Congress has imbedded in the labor laws, and is
reasonably enforced against union members who are free to leave the
union and escape the rule." Id. at 430. The Board concluded that
rules impeding a worker's right to resign at will fail the second and
third parts of this test. The Board found, first, that resignation
restrictions restrain members in the exercise of their Section 7 right
to refrain from any and all concerted activities. Section 7 protects
"not only the right to refrain from strikes but also the right to
resign union membershio." Neufeld, 270 N.L.R.B. at 1333. Second, the
Board found that, by compelling a member to maintain full union
membership, resignation restrictions collide with the statutory policy
of voluntary unionism implicit in Sections 8(a)(3) and 8(b)(2) of the
Act, 29 U.S.C. 158(a)(3) and 158(b)(2). Neufeld, 270 N.L.R.B. at
1333. Third, the Board found that resignation restrictions would
"impair the fundamental policy repeatedly recognized by the Supreme
Court" in distinguishing between permissible "internal union actions"
and proscribed "external union actions" by permitting the
"artificial() expans(ion of) the definition of internal actions"
(ibid.). For it is only by virtue of the rule forcing employees to
remain in the union that the union is able to regulate employee
conduct over which it would otherwise have no control. See ibid.
The Board in Neufeld also explained that resignation restrictions
could not be justified under the proviso to Section 8(b)(1)(A), which
safeguards a union's right to prescribe its own rules about the
acquisition and retention of membership. "(W)hile a union can enact
and enforce (membership) rules that are internal in scope and target,
it possesses no statutory authority to impose its will on employees
who exercise their Section 7 right to resign and thereby refrain from
concerted activity." 270 N.L.R.B. at 1335. And finally, with
reference to the Scofield requirement that a union rule must be
reasonably enforced against union members who are "free to leave the
union and escape the rule," the Board believed it to be self-evident
that this principle is violated by a rule that tells members that they
are not, in fact, free to leave the union. Id. at 1334.
2. Petitioners claim that the Board's holding is inconsistent with
this Court's decisions in Pattern Makers' and in NLRB v.
Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). See Pet. 7-10. They
rely on the distinction drawn in Allis-Chalmers between "internal and
external enforcement of union rules," and the Court's statement in
that case that Congress did not intend Section 8(b)(1)(A) "to
interfere with the internal affairs or organization of unions." 388
U.S. at 187 (citation and emphasis omitted). They claim that Pattern
Makers', while establishing that a union violates the Act by imposing
fines for improper resignation, reaffirmed the Allis-Chalmers holding
that regulations not affecting union members' employment status are
permissible "internal" rules. They maintain that, because the UAW
cannot levy fines against members who resign in defiance of union
rules, and because the resignation restrictions at issue here do not
otherwise affect members' employment status, the restrictions
represent permissible "internal" union rules.
This contention is in error. Indeed, both Allis-Chalmers and
Pattern Makers' lend strong support to the Board's holding in this
case. In Allis-Chalmers, the Court held that a union did not commit
an unfair labor practice by fining members for crossing a picket line
(and suing in state courts to collect the fines), but placed great
stress on the fact that "the fined employees involved herein enjoyed
full union membership." 388 U.S. at 196 (emphasis added). The
employees in question had made no effort to resign from the union
before or after committing the violations of union rules for which
they were fined. The Court's decision in Pattern Makers' was a
natural corollary of Allis-Chalmers. Although a union has authority
to impose sanctions on its current members, it cannot restrict their
Section 7 right to resign from membership and thus to remove
themselves from the union's machinery for internal discipline.
The facts of Pattern Makers' involved the imposition of fines for
improper resignation, but the principle on which the decision rested
was not limited to those facts. To the contrary, the Court stressed
that there is an "inconsistency between union restrictions on the
right to resign and the (Act's) policy of voluntary unionism" (473
U.S. at 105), and stated that the Act protects the employees' right
"to resign from a union at any time," 473 U.S. at 106. The Court also
cited with approval the Board's decision in Neufeld, in which the
Board had unequivocally embraced the principle that "any restrictions
placed by a union on its members' right to resign * * * are unlawful."
270 N.L.R.B. at 1333 (emphasis added). See 473 U.S. at 105. The
Court thus accepted the Board's judgement in Neufeld that union rules
that significantly impede resignation, thereby compelling members to
retain full membership, are incompatible with the statutory policy of
voluntary unionism. 473 U.S. at 104-107.
Finally, the Court in Pattern Makers' agreed with the Board's
conclusion in Neufeld that Congress's decision to include a proviso in
Section 8(b)(1)(A) that would enable unions to preserve control over
their internal affairs "does not suggest an intent to authorize
restrictions on the right to resign" (473 U.S. at 102 (citing Neufeld,
270 N.L.R.B. at 1333)), in that "union constitutional provisions
restricting the right to resign were uncommon, if not unknown (in
1947)." 473 U.S. at 103 (footnote omitted). Indeed, the Court noted
that neither it nor the Board had "ever interpreted the (Section
8(b)(1)(A)) proviso as allowing unions to make rules restraining the
right to resign." 473 U.S. at 108-109. The Court found that the Board
had reasonably interpreted the phrase "rules with respect to the
acquisition or retention of (union) membership" as encompassing "union
rules involving admission and expulsion," but not "rules restricting
the right to resign" (ibid.; see also id. at 116 (White, J.
concurring)). /6/
3. Contrary to petitioners' contention (Pet. 9), the rule
restricting resignation from union membership can have a coercive
impact on employees in the exercise of their Section 7 right to resign
even though the only sanction for violation of the rule is "reprimand
or suspension or expulsion from union office or union membership"
rather than a court-enforceable fine. As the Board explained in
Engineers & Scientists Guild (Lockheed-California Co.), 268 N.L.R.B.
311 (1983), the mere maintenance of a constitutional provision
restricting resignations "restrains and coerces employees, who may be
unaware of the provision's unenforceability, from exercising their
Section 7 rights." Its effect is "analogous to the effect of an * * *
overly broad no-solicitation rule," which, under settled law, tends to
restrain and coerce employees whether or not it is enforced. Id. at
311 & n.3.
CONCLUSION
The petition for certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
JOSEPH E. DESIO
Acting General Counsel
D. RANDALL FRYE
Associate General Counsel
ROBERT E. ALLEN
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
LINDA SHER
Assistant General Counsel
CARMEL P. EBB
Attorney National Labor Relations Board
AUGUST 1989
/1/ All dates hereafter are in 1983, unless otherwise indicated.
/2/ The constitutional provision at the time the strike began gave
the Local the power to reprimand members found guilty of the charges,
to suspend or expel them from union membership, or to assess a fine
not to exceed $100. At its convention in May 1983, the International
amended its constitution to remove the authorization for the
imposition of fines. Pet. App. 14a n.1, 24a. The administrative law
judge, whose findings were adopted by the Board (Pet. App. 14a),
acknowledged that, in the wake of the May 1983 amendment, "the only
actions that can be taken against a member found guilty as charged (of
violations of the resignation rules) are suspension or removal from
union office or suspension or expulsion from membership." Pet. App.
24a.
/3/ Section 8(b)(1)(A) of the Act makes it an unfair labor practice
for a union to restrain or coerce employees in the exercise of rights
guaranteed by Section 7 (29 U.S.C. 157), with the proviso that a
union's right to prescribe its own rules with "respect to the
acquisition or retention of membership" shall not be impaired.
Section 7 of the Act guarantees employees the right, inter alia, to
join or assist a labor organization and the right to refrain from such
activities.
/4/ The Board's original order also required petitioners to dismiss
all intra-union charges brought against the employees who had crossed
the picket lines (Pet. App. 30a). In a supplemental decision and
order (Pet. App. 37a-39a), the Board removed that provision from its
order, citing its then-recent holding in Food & Commercial Workers
Local 81 (MacDonald Meat), 284 N.L.R.B. No. 131 (July 17, 1987). In
that decision, the Board held that a union's suspension or expulsion
of members after they have resigned their union membership does not
violate employees' Section 7 rights because it does not coerce them in
their association with the union. Such action is therefore protected
by the proviso to Section 8(b)(1)(A), see note 3, supra, which permits
a union to prescribe its own rules.
/5/ The court noted that "(n)either the ALJ nor the Board discussed
the requirement that a member's resignation be in writing and sent to
a designated officer" of the Union. The court declined to enforce the
order directing the Union to eliminate these requirements, finding
that they did not, on their face, "restrain() or coerc(e) members" in
violation of Section 7 of the Act, and that they served a legitimate
union recordkeeping purpose. Pet. App. 12a.
/6/ Nor is it material, as petitioners contend (Pet. 11), that the
rule here may serve a legitimate union interest. The rule barring
resignations during a strike in Pattern Makers' advanced the
legitimate union interest of preserving solidarity in a strike; yet,
that was not sufficient to privilege the rule. As noted above, a
union rule that "reflects a legitimate union interest" satisfies only
one part of the Scofield test; the rule may nevertheless be found to
be invalid if it fails the remaining parts of the test -- as
petitioners' rule does -- by violating workers' rights to refrain from
union participation.
To the extent that NLRB v. International Union, UAW, 320 F.2d 12
(1st Cir. 1963) (Pet. 11), holds to the contrary, the conflict is
immaterial because that decision was superseded by this Court's
subsequent decisions in Scofield and Pattern Makers'.